JUDGMENT : Anil Kumar Choudhary, J. Heard the parties. 2. No one turns up on behalf of the opposite party No.2 in spite of repeated calls. 3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the entire criminal proceeding including the order dated 14.09.2016 in connection with Complaint Case No.82 of 2016 passed by the learned Chief Judicial Magistrate, Ramgarh whereby and where under the learned Chief Judicial Magistrate has found prima facie case against the petitioner for the offence punishable under Section 406 , 420 of the INDIAN PENAL CODE . 4. The brief fact of the case is that the allegation against the petitioner is that the petitioner entered into an agreement with the complainant-opposite party No.2 to sell land and took up advance but he did not execute sale-deed. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311, para-12 of which reads as under:- “12. In the present case, the appellants were not entrusted with any property by respondent no. 2 - complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied) and submits that the amount paid towards consideration cannot be said to have been entrusted with the accused person by the complainant and merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. Hence, it is submitted that the offence punishable under Section 406 of the INDIAN PENAL CODE is not made out against the petitioner. Hence, it is submitted that the offence punishable under Section 406 of the INDIAN PENAL CODE is not made out against the petitioner. It is next submitted that the dispute between the parties is at best a civil dispute and in the absence of any material available in the record to show that the petitioner played deception since the beginning of the transaction between the parties, the offence punishable under Section 406 of the INDIAN PENAL CODE is not made out against the petitioner. 6. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 and submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law that merely because an agreement to sell was entered into and which agreement, the accused person of the case failed to honour, it cannot be said that the seller has cheated the respondent and no case for prosecution under Section 420 or Section 406 of the INDIAN PENAL CODE is made out. In this respect, the learned counsel for the petitioner draws the attention of this court, to para-6 of the said judgment, which reads as under:- “6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent.” (Emphasis supplied) 7. Learned counsel for the petitioner further relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360 and submits that therein the Hon’ble Supreme Court of India has deprecated the trend of converting civil dispute into criminal case and putting pressure upon the accused person of the case for returning the amount. 8. Learned counsel for the petitioner further draws attention of this Court towards page No.40 to 47 and page No.48 to 53 of the brief and submits that the petitioner has executed the said sale-deed in favour of the complainant. It is next submitted that there is no allegation against the petitioner of any entrustment nor is there any allegation against the petitioner of any deception being played by the petitioner since the very inception of the transaction between the parties. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed. 9. Learned Additional Public Prosecutor appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in this Criminal Miscellaneous Petition and submits that if the allegation made in the protest petition, statement on solemn affirmation and the statement of the enquiry witnesses to be true in their entirety, both the offences punishable under Section 420 and 406 of the INDIAN PENAL CODE are made out against the petitioner. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 10. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed. 10. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that mere inability or refusal of the seller to sell a property in terms of the agreement for sell will not amount to prosecution for either the offence punishable under Section 406 of the INDIAN PENAL CODE or the offence punishable under Section 420 of the INDIAN PENAL CODE unless the ingredients of the said offences are also alleged against the accused person. 11. Now coming to the facts of the case; so far as the offence punishable under Section 406 of the INDIAN PENAL CODE is concerned, the essential ingredients to constitute the offence punishable under Section 406 of the INDIAN PENAL CODE are as under:- (i) There must be entrustment; and (ii) There must be misappropriation or conversion to one’s own use or use in violation of the legal direction or of any legal contract. as has been held by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641 . 12. Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner received the advance amount for sale of property of him but did not sell the same. As already indicated above, making advance payment for purchasing property cannot be termed as entrustment under Section 405 of the INDIAN PENAL CODE and in the absence of any entrustment, the question of dishonest misappropriation of the same does not arise. Further, there is no allegation of dishonest misappropriation of any property by the petitioner. 13. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, the offence punishable under Section 406 of the INDIAN PENAL CODE is not made out. 14. So far as the offence punishable under Section 420 of the INDIAN PENAL CODE is concerned, one of the essential ingredient of the said offence is that ‘accused played deception since the beginning of the transaction between the parties’. 14. So far as the offence punishable under Section 420 of the INDIAN PENAL CODE is concerned, one of the essential ingredient of the said offence is that ‘accused played deception since the beginning of the transaction between the parties’. There is neither any allegation against the petitioner that the petitioner intentionally induced anyone nor is there any allegation that the petitioner induced anybody dishonestly or fraudulently to part with any property. Further, there is no allegation also that the petitioner played deception since the beginning of the transaction between the parties. In absence of the essential ingredients, this Court is of the considered view that the offence punishable under Section 420 of the INDIAN PENAL CODE is also not made out against the petitioner; even if the entire allegations made in the complainant, the statement on solemn affirmation of the complainant and the statement of the enquiry witnesses as discussed above, made against the petitioner are considered to be true, in their entirety. 15. In view of the discussions made above, as neither the offence punishable under Section 420 of the INDIAN PENAL CODE nor the offence punishable under Section 406 of the INDIAN PENAL CODE is made out against the petitioner; even after the entire allegations made against the petitioner are considered to be true in their entirety; hence, this Court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. Therefore, this is a fit case where the entire criminal proceeding including the order dated 14.09.2016 in connection with Complaint Case No.82 of 2016 passed by the learned Chief Judicial Magistrate, Ramgarh, be quashed and set aside qua the petitioner only. 16. Accordingly, the entire criminal proceeding including the order dated 14.09.2016 in connection with Complaint Case No.82 of 2016 passed by the learned Chief Judicial Magistrate, Ramgarh, is quashed and set aside qua the petitioner only. 17. In the result, this Criminal Miscellaneous Petition is allowed.